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The latest edition of the firm’s “Real Estate Counselor” column is authored by partner Shari Wald Garrett and appears in today’s edition of the Miami Herald. The article, which is titled “Drones Can Get Tempers Flying High in HOA Communities,” focuses on the issues stemming from the use of drones in communities with associations and the types of restrictions that many communities are putting in place. Her article reads:
. . . Owners and residents in HOA communities across the country have expressed concerns over drones equipped with cameras being capable of surveilling their properties and backyards. There have also been outcries that have made local media headlines over associations’ use of drones.
To address these issues, the Florida legislature enacted in 2015 the “Freedom from Unwanted Surveillance Act,” which bans the use of drones “equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent.”
The law further clarifies that a person is presumed to have a “reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.”
Interestingly for municipalities and possibly also for licensed community association managers acting as agents of associations, the law does not prohibit the use of a drone “by a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s license.”
The owners and residents of properties located in HOA and condominium communities do not have a reasonable expectation of privacy when they are out and about in the common areas, so Florida associations can allow for some limited use of drones and remain in compliance with the state law.
For association directors and/or property managers who are thinking about using drones for maintenance inspections, insurance appraisals, or possibly even code enforcement, there are a number of considerations they should bear in mind.
They should begin by having a highly qualified and experienced community association attorney review their governing documents to determine whether they allow for the use of drones or if an amendment would be required to their governing documents. For some associations, the provisions in their documents covering their maintenance and repair requirements may suffice for the approval of the use of drones via a vote of the board of directors. Some documents also give associations the right to enter unit owners’ properties for specific inspection, maintenance, replacement and repair needs, and those stipulations may also be interpreted to allow for drone usage for these purposes.
Prior to the use of drones, associations would also be well advised to consult with their insurers. Drone accidents can cause injuries and/or property damage, so associations should always maintain adequate insurance protection against potential liability.
Additionally, association directors and property managers should be cognizant of the fact that the use of drones, especially if it is for code-enforcement violation inspections over owners’ properties, is bound to stir up some negative reactions from owners and residents. To address and overcome such community concerns, boards of directors should listen to and consider all the members’ viewpoints in the open forum of their regular meetings before developing and enacting written rules, policies and/or resolutions regarding drone use.
Associations should consider restricting the space within which drones may be flown, such as over their operator’s personal lot or the lots of adjoining neighbors (with their prior permission). They may also wish to limit the use of drones to association common areas that are located away from roads, buildings, playgrounds and other amenities.
Communities should also take steps to assign all risks and liabilities involving the use of drones to their operators, and require such operators to indemnify the association, as well as its directors and representatives, against all claims involving the use of the drone. Such indemnification and use agreements should specify that drones must be operated in accordance with all applicable federal, state and local regulations.
Video and photography of others in the community taken from drones without such individuals’ prior written consent should be prohibited, along with the use of drones in such a manner as to cause a nuisance or disturbance to others in the community. . .
Shari concludes her article by noting that these rules and policies can enable associations to develop and implement reasonable restraints over the use of drones in their communities. She encourages association boards of directors to work with their property management and highly experienced legal counsel to develop and implement the most effective drone rules and policies for their community.
Our firm salutes Shari for sharing her insights into the issues and policies involving drones in HOA communities with the readers of the Miami Herald. Click here to read the complete article in the newspaper’s website.